Most people know that the law protects them from being discriminated against by their employer on the basis of race, gender, disability, and a variety of other protected characteristics. Some employees, however, may not be aware that anti-discrimination laws do not stop there. Under a doctrine known as associational discrimination, employers may also be prohibited from discriminating against an employee based on their relationship with a member of a protected class.
What is associational discrimination?
Associational discrimination occurs when someone is discriminated against because of their relationship with another person. Generally, this type of discrimination occurs in one of two situations:
- Associational Discrimination: an employer discriminates based on the employee’s relationship with someone in a protected class (for example, race, gender, religion, disability status); or
- Associational Retaliation: an employer discriminates or retaliates against an employee because of their relationship with someone who engaged in legally-protected conduct.
These protections help safeguard employees against discrimination or retaliation which the law may not otherwise prohibit.
What laws protect employees against associational discrimination?
Associational discrimination cases can be brought under various laws. Cases are frequently litigated by family members of individuals with disabilities, since the Americans with Disabilities Act (ADA) explicitly prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. §12112(b)(4).
And associational discrimination claims can be brought under laws other than the ADA. For example, courts have held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of their associates’ race, gender, religion, and/or national origin. Even though Title VII does not explicitly prohibit discrimination by association like the ADA does, courts have found that Title VII does bar this type of discrimination.
In Holcomb v. Iona College, a federal appellate court explained the rationale for reading associational discrimination into Title VII. 521 F.3d 130 (2nd Cir. 2008). Holcomb involved a white basketball coach who was fired because his employer was unhappy that he was married to a Black woman. The court found that this fell within Title VII’s bar on discrimination, holding:
“The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”
Id. at 139. Numerous other courts have applied a similar associational discrimination analysis, including to cases dealing with other protected characteristics under Title VII. See, e.g., Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999)(holding that employee who was discriminated against for having a biracial child was protected under Title VII); Chiara v. Town of New Castle, 2015 WL 161646 (App. Div. Jan. 14, 2015)(holding that employee who was harassed due to his wife’s religion was protected); Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)(holding – three years before SCOTUS’s decision in Bostock – that employees in same-sex relationships were protected from discrimination based on their association with partners of a certain sex).
Some laws that prohibit retaliation for protected activities also recognize and protect against associational retaliation. Where the statute doesn’t directly prohibit associational retaliation, courts have also given broad interpretations that favor protection for the associates of whistleblowers.
For example, the anti-retaliation provision of Title VII states only that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge.” 42 U. S. C. §2000e–3(a). The Supreme Court held in Thompson v. North American Stainless that this also prohibited an employer from terminating a whistleblower’s fiancé, reasoning that this “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” No. 09-cv-291, at *3 (Jan. 24, 2011).
This means that employees cannot suffer adverse actions simply because someone they associate with engaged in legally-protected activity, such as blowing the whistle. Employees who do suffer such actions may have a legal cause of action.
What types of relationships constitute an “association”?
An “association” can encompass a wide variety of relationships. Courts interpreting the ADA’s “relationship or association” language have construed it broadly, finding that it may include “a family, business, social or other relationship.” Larimer v. International Business Machines Corp., 370 F.3d 698, 702 (7th Cir. 2004).
“Association,” however, is not a limitless term. In Oliveras-Sifre v. Puerto Rico Dept. of Health, the Court found that plaintiffs who were fired for public policy advocacy on behalf of individuals with AIDS were not protected under the ADA because they failed to allege a connection with any specific disabled individual. 214 F.3d 23, 26 (1st Cir. 2000).
What legal standards govern associational discrimination claims?
Associational discrimination claims are generally analyzed like claims of direct discrimination. Usually, a plaintiff must establish a prima facie case of discrimination, including showing that they suffered an adverse employment action and that they can link it to a protected class or activity under the law.
The exact legal standard varies depending on the law under which the claim is being raised. Generally, courts impose a similar burden on associational discrimination cases as they do under other discrimination cases. For example, to establish a prima facie case of associational discrimination under the ADA, a plaintiff must show that:
- they were qualified for the job at the time of the adverse action;
- they were subjected to an adverse action;
- they were known by their employer to have a relative or associate with a disability; and
- the circumstances around the adverse action give way to a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision.
Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011). This is simply a modified version of the McConnell-Douglas burden-shifting test employed by the courts in most ADA cases involving direct discrimination. Larimer v. International Business Machines Corp., 370 F.3d 698, 702 (7th Cir. 2008).
Employment discrimination is not limited to acts taken against employees based on their personal membership in a protected class. Employers can also violate the law by discriminating against an employee because of their association or personal relationship with someone who enjoys legally protected status. This may be true even when a statute does not explicitly mention associational discrimination.
The law also recognizes associational retaliation. This means that employees who suffer adverse actions because of their associates’ legally-protected activity may have a cause of action.
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